Supreme Appointments…Then and Now

I’ll hope from time to time to offer some historical context and perspective on Idaho and regional issues and personalities.

Please let me know what you think and check back often.

No better place to begin than the current Supreme Court confirmation story and a little historical context concerning a great Senator from Idaho – William E. Borah.

It appears all but certain that Judge Sonia Sotomayor will be confirmed as only the third woman and the first Hispanic to sit on the Supreme Court of the United States. Even given the attention paid to the Judge’s “wise Latina” comment, the hearings lacked much drama or controversy. As Frank Rich noted (http://www.nytimes.com/opinion) the drama “tanked faster” than Fred Thompson’s presidential campaign.

Prior to the onset of the modern Supreme Court confirmation ritual, the advise and consent responsibilities of the United States Senate were usually handled in a much quieter way than we have come to expect. Drama was the exception to be sure.

Borah: A Champion of Quality Nominees

For example, one of Idaho’s greatest political figures, Senator William E. Borah, had a major and frequently behind the scenes hand in influencing a number of Supreme Court appointments during his 30-plus years in the Senate. Two appointments he championed in the 1930’s rank today as among the greatest Supreme Court justices ever.

In 1932, as a member of the Senate Judiciary Committee, Borah lobbied hard for the nomination of the chief judge of the New York Court of Appeals Benjamin N. Cardozo. Cardozo was a brilliant legal scholar and widely respected leader of what was at the time the most important state court in the country. President Herbert Hoover was initially reluctant to name Cardozo, in part, because New York was already represented on the court and Cardozo, like Associate Justice Louis Brandeis, was Jewish. (Some Hoover advisors apparently counseled against two Jews on the court.)

None of these calculations mattered in the least to Borah who went to the White House to personally make his case for Cardozo to the president. “Cardozo belongs to Idaho as much as he does to New York,” Borah told Hoover.

Hoover listened to the sale pitch and handed the Idaho Senator a list of names he had under consideration for the high court. Borah read the list and took note of Cardozo’s name at the very bottom. “Your list is alright,” Borah said, “but you handed it to me upside down.”

Hoover always maintained that he alone came to the decision to appoint the eminent Cardozo to the Supreme Court, but its hard to believe that the forceful advocacy of the powerful chairman of the Senate Foreign Relations Committee hadn’t carried a little weight. By most every standard, Benjamin N. Cardozo ranks as one of the greatest justices in the history of the Supreme Court.

A few years later, in 1937, Borah staunchly backed the Supreme Court confirmation of the Democratic Senator from Alabama Hugo L. Black.

Franklin D. Roosevelt had appointed Black, a down-the-line New Dealer, in the immediate wake of his failed plan to enlarge the Supreme Court. Black was one of only 20 senators who held out to the very end in favor of Roosevelt’s “court packing.” Many Senators, Democrats included, saw Black as less than qualified – he’d been a police court judge in Birmingham – and deemed his nomination an effort by FDR to rub salt in the court packing wounds. Borah saw something else in Black’s qualifications and took to the Senate floor to defend the Democrat against allegations that Black had not really disavowed his one-time membership in the Ku Klux Klan. One wag said, as Black headed for the Supreme Court, that “he didn’t need new robes, he could just dye the old ones.”

Hugo Black survived that early controversy and over 34 distinguished years on the Supreme Court gained a reputation as a great defender of the First Amendment.

Borah was a power in the Senate at a time when interest group politics barely, if at all, entered the debate around a nominee for the Supreme Court. When Borah helped influence the nomination and confirmation of two of the great justices of the 20th Century, judicial philosophy, while important, was relatively less important than judicial scholarship or raw intelligence.

The Supreme Court confirmation process was a good deal different in the 1930’s than what we saw unfold between Judiciary Committee Senators and Judge Sotomayor. It’s worth remembering that the quieter, more low key process typical in Borah’s era did produce a Cardozo and a Black.